The Delimitation of the Spanish Marine Waters in the Strait of Gibraltar
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THE DELIMITATION OF THE SPANISH MARINE WATERS IN THE STRAIT OF GIBRALTAR This document has been translated by a Translation and Interpreting Degree student doing work experience, Virginia Ruiz Moreno, under the auspices of the Collaboration Agreement between the Universidad Pontificia Comillas, Madrid, and the Spanish Institute of Strategic Studies. 1. - INTRODUCTION Studying the Strait of Gibraltar from a legal point of view is a difficult endeavour. Its internationality and its concrete geographical characteristics would not pose problems for understanding the nature and legal status of its waters if the interests of both coastal states regarding sovereignty over specific territories were not so difficult to conciliate. That circumstance has made it impossible for years (we could even say that for centuries) to agree a definition of the jurisdictional boundaries of the region. Morocco’s claims for sovereignty over the Spanish territories located on the Maghreb coast along the Mediterranean Sea, as well as the radically different interpretations of article X of the Treaty of Utrecht between Spain and the United Kingdom regarding the British colony of Gibraltar, have had an influence throughout history in these countries’ international relations. Thus, the Strait of Gibraltar is a wonderful example to study international Law and particularly the rules of the Law of the Sea. The aim of this essay is to clarify the legal status of the waters of the Strait of Gibraltar, according to the Law of the Sea, and analyze the type of navigation that takes place in practice. For that purpose, first of all, we will study the current situation of the controversial points in the Gibraltar Strait (Perejil Island, Ceuta and the British colony of Gibraltar). Then, we will analyze the jurisdictional rights that these States exercise over its waters, as well as the international legal regime of navigation. 2. - GEOPOLITICAL AND STRATEGIC ANALYSIS OF THE STRAIT OF GIBRALTAR In order to get to know the legal status applicable to the region and understand the controversies that its application may cause, we must analyze the physical features of the strait. For that purpose, we will draw a picture of the geographical framework of the marine spaces where both States exercise sovereignty and have jurisdictional rights. Thus, we must explain the meaning of the word “strait” from both geographical and legal points of view. THE DELIMITATION OF THE SPANISH MARINE WATERS IN THE 1st April 2012 STRAIT OF GIBRALTAR A strait is a natural channel of water between two coastlines; it is the result of a contraction of the sea, which separates two portions of land and connects two maritime areas. The Strait of Gibraltar is a narrow area of water that runs alongside 33 NM1, separating the Southwestern extreme of Europe and the Northwestern extreme of Africa, where the Mediterranean Sea and the Atlantic Ocean meet. Its northern coast (between the Cape of Trafalgar and Europa Point – Rock of Gibraltar) has a length of 55 NM and its southern coast (between Cape Spartel and Santa Catalina Point – Ceuta) is 42 NM long. According to the Spanish Instituto Hidrográfico de la Marina, the western mouth of the Strait (between the Cape of Trafalgar and Cape Spartel) is 24.2 NM2 long, whereas the eastern part of the Strait (between Europa Point and Ceuta) is 12.5 NM; the narrowest part of the Strait, with a length of 7.45 NM, is the area located between Point Cires, in the South, and the median line between Tarifa and Guadalmesí river, in the North. 1 Nautical miles. 1 nautical mile is equivalent to 1,852 meters. 2 This is the biggest distance of the distances existing between the baselines used for measuring the territorial sea, which are established by the coastal States in the Strait, Spain and Morocco. See. V.L. Gutiérrez Castillo, España y sus fronteras en el mar, Dykinson, Madrid, 2004 and El Magreb y sus fronteras en el mar, Hyugens, Barcelona, 2009 by the same author. 2 Opinion Document Víctor Luis Gutiérrez Castillo ieee.es Nº 29/2011 THE DELIMITATION OF THE SPANISH MARINE WATERS IN THE 1st April 2012 STRAIT OF GIBRALTAR However, from the legal point of view, the concept of the Strait is more complex and it is defined by four concurrent factors: a) the existence of a strait, from the geographical point of view; b) its use as a navigation channel, which highlights the fact that it is a strait; c) the legal status of its waters; d) the regime of navigation it sets. In this sense, the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) establishes a variety of legal status that can be applied to straits according to their waters and their legal nature. It establishes a difference between those with a broad regime of freedom of navigation (regime of transit passage) and those with a more limited regime of navigation (regime of innocent passage). The first regime is applied to the straits connecting “a high seas area or an area within an Exclusive Economic Zone (EEZ) with another high seas area or another area within an EEZ (such as the Strait of Malacca, or the Strait of Hormuz)”. This regime is applied to “those straits that are part of a high seas route or a route that goes through an EEZ”. The second regime is applied only to waters forming a strait between an island of a State and the mainland of that State, on one side, and a high seas route or a route through an EEZ, on the other side, and it can also be applied to straits between a high seas area or an EEZ and the territorial sea of another State, like the Strait of Corfu and the Strait of Tiran. Regarding the Strait of Gibraltar, we could say that all its waters are under state sovereignty and/or state jurisdiction, which does not hinder navigation. The main characteristic of the legal status of its waters, as we will see later, is the freedom of navigation. This statement is based on the internal and international rules currently applicable in the zone. According to the Spanish Ley 10/77 de 4 de enero (BOE de 8 de enero de 1977) and Dahir portant Loi n.º 1-73-211 du Moharrem 1393 (2 mars 1973), the area of territorial sea corresponding to Spain and Morocco is 12 NM long from the coastlines of both countries. Moreover, the United Kingdom claims since 1878 a territorial sea of 3 NM around its colony in virtue of the Territorial Waters Jurisdictional Act3. Morocco, on the other hand, has established EEZ in all its coasts, including the ones located in the Strait and in the rest of its Mediterranean shore by means of Dahir du 8 avril 19814). If we take all these data into account, there is no doubt that, from the geographical point of view, the waters of the Strait of Gibraltar are located in an area of waters under the sovereignty or under the jurisdiction of the coastal States. Due to the factors mentioned, the Strait has the first legal status established by the UNCLOS that we have already explained: it connects a high seas area or an area within an EEZ with another high seas area or another area within an EEZ; in this kind of straits, the regime of transit passage is applied. The Strait of Gibraltar connects an area of the Atlantic Ocean where Morocco, Spain and Portugal5 have established EEZs that overlap, with Mediterranean waters, specifically the Alboran Sea, where only Morocco has established an EEZ. 3 J.L. Suárez de Vivero, “Jurisdicciones marítimas en el Estrecho de Gibraltar”, available at the website of Real Instituto Elcano, http://www.realinstitutoelcano.org/analisis/44.asp, (22/7/2002) 4 Dahir nº 1-81-179 du 3 joumada II 1401 (8 avril 1981) portant Loi nº 1-81, according to which it is established an EEZ of 200 NM along the coasts of Morocco. 5 Ley n.º 33/77 de 28 de mayo de 1977. Diario Republica Portuguesa, 28th May 1977. 3 Opinion Document Víctor Luis Gutiérrez Castillo ieee.es Nº 29/2011 THE DELIMITATION OF THE SPANISH MARINE WATERS IN THE 1st April 2012 STRAIT OF GIBRALTAR 3. - POINTS WHOSE SOVEREIGNTY IS CONTROVERSIAL AND DELIMITATION OF SEA FRONTIERS One of the most remarkable aspects in the study of this topic is the fact that there have been claims over small territories located in both sides of Strait for centuries. These claims have been affecting the relations between Spain, Morocco and the United Kingdom in an intermittent way; it is the case of Morocco, regarding the Spanish territory located in Ceuta and Perejil Island, and the case of Spain regarding the waters that surround the British colony of Gibraltar. We will now move on to the points whose sovereignty is controversial and their titles. 3.1.- Perejil Island Perejil Island, also known as Leïla Island or Toura Island, is a rocky islet that was originally part of the Yebel Musa Mountain. It is located 200 meters away from the Moroccan coast and less than 8 kilometers from Ceuta, between Almanza Point and Leona Point (one of the narrowest parts of the Strait of Gibraltar). There are two small inlets on its shore: the one on the north is called “Cala del Rey” and the one on the south is called “Cala de la Reina”, near which there still remain the ruins of a tower built during the Portuguese occupation. Historically, Perejil Island has been part of Spain; however, it has been inhabited since 1960’s.